Swedish merger control: Important changes

The Swedish Competition Authority (S The Authority adopted new merger notification guidelines and regulations on The new regulations expand the list of documents, market These amendments would significantly strengthen the SCA’ The Swedish Competition Authority adopted a new regulation, The SCA has based the amendments on The Regulations are designed to optimize the merger control The Regulations increase the amount of information and data The SCA believes the information requirements for the Swedish The Swedish information requirements, where appropriate, have been The SCA has introduced electronic signatures to streamline This means that the current requirement to provide a physical original signed declaration will be removed, which is welcome.

The Regulations expand the list of information and the volume of market data to be submitted in Swedish merger notifications.

Some of the new obligations apply to all mergers, i.e. Some of the new obligations apply to all mergers All notifications, for example, will need to include The Regulations also require that the identity of ultimate Today, the merging parties usually argue that ownership information is covered by secrecy and request that such information be kept confidential.

However, but most of the extended requirements apply only where the merging parties have overlapping activities, i.e. The Regulations require that the parties discuss all possible For such mergers, the Regulations introduce an obligation to discuss all plausible alternative market definitions, extend the list of internal documents and the volume of market data that must be attached to the notification, and clarify that the parties are expected to engage in pre-notification contacts with the SCA.

For mergers that give rise to affected markets

the list of documents and data to be attached to the merger notification is extended to include

minutes from all meetings of the notifying party’s management, board of directors and shareholders’ meetings at which the merger has been discussed,

analyses, reports and similar documents prepared in the last two years to assess any affected market in terms of market shares, competitive conditions, competitors, potential for sales growth or expansion into other product or geographic markets,

information about economic data that the merging parties collect and store in their business and that may be useful for quantitative economic analysis,estimated market shares and contact details for all competitors with a market share of more than 5 percent, and[1]estimated market shares of the merging parties over the next three years for planned (pipeline) products or services.

• For mergers that give rise to
• reportable markets
• or
• other markets where the merger may have a significant impact
• the list of documents and data to be attached to the merger notification is extended to include

presentations prepared by or for the notifying party’s management, board of directors or shareholders’ meeting to assess the notified merger, andthe market size and estimated market shares of the merging parties for the preceding three years (today one year is sufficient).[2]The Regulations increase the expectations on the mering parties to engage in pre-notification contacts with the SCA. They do not impose any formal requirements to take pre-notification contacts, but they clarify that such contacts are encouragedfor mergers that may give rise to affected markets,[3]for mergers that may give rise to other markets where the concentration may have a significant impact,

• for questions concerning the competence of the SCA to review a merger, and
• for requests for exemption from information requirements.

• Proposals for Amendments in the Swedish Competition Act
• The new regulations were accompanied by proposals for legislative amendments both from the SCA and a public inquiry. The proposed amendments would significantly increase the SCA The SCA proposes to relax the substantive test The SCA can currently only block mergers that The SCA has repeatedly stressed the need for greater The SCA refers to its decision of 2019 In its submission to legislators, the Authority notes The SCA proposes a new provision With regard to liability for legal costs in court proceedings, the SCA proposes a new provision stipulating that the State is not liable for the merging parties’ legal costs if the case is dismissed on the grounds that the notified merger cannot be implemented.
• Public inquiry proposal

Moreover, on 7 March 2025, a public inquiry tasked with investigating the need for a new broader competition tool in Swedish law proposed

two important amendments to the SCA’s powers to investigate mergers.

First, the inquiry proposes that the SCA be given the power to impose a duty on undertakings to provide information about mergers that fall below the thresholds for mandatory notification. This power will allow the SCA to be informed The SCA can use this power to ensure that According to the proposal the SCA should have the The orders would have a maximum of two years The companies that are subject to these orders will be The SCA has 15 working days from the date During this period, and the possible review period (if the merger is called in), a stand-still obligation will apply.

Second, the inquiry proposes that the SCA be given the power to impose fines on merging parties that provide incorrect, incomplete or misleading information in response to a request for information (“RFI”) from the SCA or fail to provide the required information within the deadline. The SCA has the power to impose fine The inquiry proposes that the SCA be given The proposal does not include information contained in the merger The inquiry concluded that the SCA should, as a starting point, be able to assume that the information in the merger notifications is accurate and true. For this reason, the inquiry considers that the SCA should, as a starting point, be able to assume that the information in the merger notifications is correct and accurate.

Impact on Merging Parties and the SCA’s Review The Regulations mark a shift towards a stricter approach and a more time-consuming merger control procedure in Sweden.

Compared to the Commission and many other competition authorities in the EU/EEA, the SCA has been known to take a rather pragmatic approach in merger cases, especially when it comes to mergers that are clearly unproblematic. The SCA’s pragmatic approach to merger cases has been praised by companies and their legal advisors. Commentators have questioned whether the Authority has taken a too-lax approach in recent years, following some controversial clearance decisions. The Regulations bring Swedish merger control requirements closer to those of the EU by increasing the requirements placed on merging parties. The SCA wants to improve the chances of obtaining a true, unadulterated view of the merger and its potential effects by introducing the obligation to discuss alternative market definitions. This requirement is intended to prevent the SCA from being misled by the parties’ primary market definition, and wasting time by focusing their investigation in the wrong directions. The SCA may be reluctant to declare a merger notification incomplete, but since the market definition is not a precise science, it is unlikely that they will do so based on divergent views about the market definitions that should be included. In practice, the uncertainty in this area is likely to be resolved during pre-notification contact. The expectations are reciprocal. To ensure that pre-notification contact is constructive, SCA must make sure that case handlers who participate in these contacts are familiar with the issue and prepared to be open and transparent about their findings and concern at an early stage. The regulations don’t provide any details about the procedure for pre notification contacts, such as deadlines. on the deadlines for information from the merging parties and feedback from the SCA, but the SCA has signalled that the process will be formalised and more aligned with the Commission’s procedure, which is welcome.

Going forward, companies involved in Swedish mergers should be prepared to spend considerably more time preparing the merger notification and providing the Authority with the information necessary to obtain approval. It is important to take into account the increased requirements when drafting the transaction documents and setting the timetable. To avoid unexpected delays, it is important to identify and analyse the overlapping activities of the parties at an early stage. As the SCA is increasingly focused on internal documents, merging parties must have procedures in place that allow them to review and clean up internal documents before they are finalized. If they are adopted, which seems likely, then they will increase the administrative burden for merging parties, who are already subjected to a complex regulatory environment. The amendments could strengthen the SCA’s powers to detect, investigate, and intervene in harmful mergers to the benefit of consumers and competition. In some ways, the SCA may want to be careful about what it wishes for. The ability to impose fines could increase the incentive for merging parties, to ensure that information provided to SCA is accurate, complete and correct. However, this power may have a double edge. RFIs often have very short deadlines, as merger investigations are becoming more data-intensive. Horizontal overlaps where combined market share is below 20 percent, or vertical connections with market share below 30 percent. Horizontal overlaps with combined market shares below 20 percent or vertical links with market shares below 30 percent.

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